COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60356 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM E. TERRY : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JULY 23, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-243896 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES MARY BETH CORRIGAN Cuyahoga County Prosecutor BRUNER, SHAPIRO & HARRIS Justice Center 1600 Illuminating Building 1200 Ontario Street 55 Public Square Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J.: Defendant-appellant, William Terry, was indicted by the Cuyahoga County Grand Jury in Case Number 222605 on one count of drug abuse in violation of R.C. 2925.11 and one count of possession of criminal tools in violation of R.C. 2923.24. Montel Williams, a co-defendant, was charged with the same offenses. Defendant filed a motion to suppress the evidence. On June 27, 1990, an oral hearing was held on defendant's motion to suppress. Following the hearing, the trial court denied defendant's motion to suppress. On June 28, 1990, a jury trial was conducted, and the defendant and co-defendant were found guilty as charged in the indictments. The trial court sentenced the defendant to a term of six months imprisonment on each count, to run concurrently, plus costs. The instant appeal followed. The relevant facts adduced at the hearing on the motion to suppress and at trial follow: On October 27, 1989, at approximately 1:00 a.m., Officer Garisek and Officer Shank were patrolling a high crime area near East 140th and McElhatten in the City of Cleveland. The evidence revealed that the officers were responding to a call of drug sales at the corner of East 140th and McElhatten. When the officers arrived at the address they parked their zone car in front of an apartment building, exited their vehicle, and walked south down the sidewalk. As the officers approached the corner they observed the defendant, the co-defendant and a - 3 - third individual standing in an alley. As the officers turned the corner they observed the third individual and the defendant make a hand exchange. Upon seeing the officers the third individual immediately fled and the defendant and co-defendant ran toward a parked car on McElhatten. The officers ordered both men to stop, but they failed to comply. Instead of complying with the officers' orders the defendant entered the driver's side door of the car and the co-defendant entered the passenger's side door. As the officers approached the car they again ordered both men to stop. In response the defendant started the car, fled eastbound on McElhatten, proceeded through a stop sign, and negotiated a turn at a high rate of speed. The defendant then lost control of the vehicle and jumped the curb causing one of the front tires to blow out. As a result of the blow out the car came to a rest and the officers approached with their guns drawn. At this point the defendant and co-defendant were removed from the car. In concern for their safety, the officers patted down the defendant and the co-defendant. In doing so they discovered a tinfoil packet containing one rock of crack cocaine in the defendant's pocket and two tinfoil packets containing two rocks of crack cocaine in the co-defendant's pocket. Upon discovery of the cocaine the defendants were placed under arrest. - 4 - The defendant and co-defendant maintained that they were exiting a friend's apartment in the area of East 140th and McElhatten when they observed two police officers detaining a few individuals next to their police car. According to their testimony the defendant and co-defendant walked to their car and proceeded to drive approximately twenty feet when the police approached their vehicle with guns drawn demanding that they stop. The defendant stopped the car and the defendants complied with the officers' orders to exit the vehicle. After exiting the vehicle each of the defendants was thoroughly searched and they were subsequently placed under arrest. The defendant's first assignment of error provides: THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR SUPPRESSION AND IN ADMITTING IN EVIDENCE ALL OF THE STATE'S EXHIBITS BECAUSE THE EVIDENCE SEIZED BY THE POLICE WAS THE FRUIT OF AN ILLEGAL SEARCH AND SEIZURE AND IS IN VIOLATION OF ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION AND THE FOURTH AND FOURTEENTH AMENDMENTS OF THE U. S. CONSTITUTION. Defendant contends the trial court erred by denying his motion to suppress evidence. Defendant argues the police officers lacked probable cause to stop and search his person thereby rendering the illegally obtained evidence inadmissible. We conclude that the officers' observations constituted the requisite probable cause necessary to make a warrantless arrest. Thus, the discovered contraband was admissible because the search was incident to a lawful arrest. - 5 - A search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment; such a search may be made (1) of the person of the arrestee by virtue of the lawful arrest and (2) of the area within the arrestee's control. United States v. Robinson (1973), 414 U.S. 218. Further, the formal arrest need not necessarily precede the search, as long as the fruits of the search were not necessary to support probable cause to arrest. Rawlings v. Kentucky (1980), 448 U.S. 98, 111. To have probable cause to make a warrantless arrest, the arresting officer must have sufficient information to warrant a prudent man in believing that a felony has been committed and that it has been committed by the accused. State v. Timson (1974), 38 Ohio St. 2d 122. As this court has previously stated, the determination of whether probable cause for an arrest exists depends upon analyzing the totality of the circumstances and assessing the relative weights of the various indicia of reliability. State v. Farndon (1984), 22 Ohio App. 3d 31. In the instant case the area was a high crime area known for high volume drug trafficking. Further, the officers were responding to a call of drug sales at the corner of East 140th and McElhatten. Additionally, the officers arrived at the designated location in the early morning hours at approximately 1:00 a.m. After exiting their zone car and rounding a corner the officers observed a hand exchange between the defendant and a - 6 - third individual. Upon seeing the officers the third individual immediately fled and the defendant and co-defendant ran toward a parked car. After failing to comply with the officers' orders to stop the defendant and co-defendant entered their car, started the car, fled eastbound, crashed a stop sign, and negotiated a turn at a high rate of speed. At this point, the defendant lost control of the vehicle and jumped a curb causing a front tire to blow out. After the vehicle came to a stop the defendant and co- defendant were ordered out of the car and searched by the arresting officers. Consideration of the totality of the circumstances in the instant case leads us to conclude that the officers' observations constituted sufficient information to warrant a prudent man in believing that a felony had been committed. Timson, supra; Farndon, supra. Accordingly, the officers possessed the requisite probable cause to effectuate a warrantless arrest and the search was valid as being made incident to a lawful arrest. For these reasons the search of the defendant was reasonable and the trial court did not err in denying defendant's motion to suppress. Thus, the defendant's first assignment of error is overruled. Defendant's second assignment of error provides: THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A MISTRIAL WHEN THE PROSECUTION INTRODUCED TESTIMONY THAT DEFENDANT MADE NO STATEMENT TO THE POLICE IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES AND OHIO CONSTITUTIONS. - 7 - The defendant argues that the trial court erred by allowing the prosecution to ask one of the arresting officers whether the defendant made a statement to the police at the time of his arrest. Appellant maintains that under the existing circumstances the trial court should have granted a mistrial. For the following reasons, we disagree. It is constitutionally impermissible for the state to comment upon or elicit testimony regarding a defendant's post- arrest silence. Doyle v. Ohio (1976), 426 U.S. 610. However, the Ohio Supreme Court has held that the use of a statement against an accused taken in transgression of Miranda may be harmless error under the rule of Chapman v. California (1907), 386 U.S. 18, where the unchallenged evidence against an accused is so overwhelming that a conviction can be said to be inevitable beyond a reasonable doubt. State v. Edgell (1972), 30 Ohio St. 2d 103. See, also, State v. Long (Oct. 4, 1979), Cuyahoga App. No. 39323. In the instant case the balance of the evidence constitutes overwhelming evidence of the defendant's guilt. The testimony of the arresting officers establishes that they observed the defendant make a hand exchange with a third individual. As the officers approached and ordered the defendant to stop he ran to a car and attempted to escape. His escape proved unsuccessful when he drove the car over a curb causing the front tire to blow out. Moreover, after being ordered out of the car a search of the - 8 - defendant's pocket uncovered the presence of crack cocaine wrapped in tinfoil. In light of the above, we hold that the defendant's motion for mistrial was properly denied. Although it was error to raise questions concerning the defendant's silence, we are convinced that the error was harmless beyond a reasonable doubt given the strength of the evidence against the defendant. Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. KRUPANSKY, J. CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .